Trump’s Ban on Military Trans Reassignment Surgery Blocked

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President Donald Trump, with one of his “generals,” Defense Secretary James Mattis, and Vice President Mike Pence. | DEFENSE.GOV

A second federal district judge has issued a preliminary injunction against implementation of President Donald Trump’s August 25 memorandum implementing his July 26 tweet that announced a ban on all military service by transgender individuals.

The November 21 action by Judge Marvin J. Garbis of the Maryland District Court came just three weeks after a federal judge in the District of Columbia, Colleen Kollar-Kotelly, issued a preliminary injunction against two directives in Trump’s three-part memo.

Garbis took the next step, enjoining implementation of all three directives, finding that the plaintiff group represented by the American Civil Liberties Union (ACLU) in this case includes at least two individuals with standing to challenge the directive against the military providing sex reassignment procedures for military personnel.

Second federal court goes further than another in rebuking president’s new policy on troops

In his August 25 memorandum, Trump directed that all transgender service members be discharged, beginning no later than March 23, 2018, and that the existing ban on enlistment of transgender service members, scheduled to end this coming January 1, be extended indefinitely. The president’s third directive provided that after March 23 the Defense Department cease providing sex reassignment surgery for transgender personnel, with possible exceptions in cases where procedures were already underway and failure to complete them would endanger an individual’s health. (Of course, such an individual, being identified as transgender, would be subject to discharge under the first directive in any event.)

On September 24, Secretary of Defense James Mattis issued his own memorandum, establishing an “interim policy” under which he would meet Trump’s deadline of submitting a “plan to implement the policy and directives in the Presidential Memorandum” by February 21, but until then, there would be no immediate effect on individual service members.

The ACLU filed this lawsuit on August 8. Three other lawsuits challenging the transgender ban are pending. One filed on August 9 in the DC District Court has already resulted in Judge Kollar-Kotelly’s preliminary injunction. The others are pending in the district courts in Seattle and Los Angeles.

Judge Garbis leaned heavily on Kollar-Kotelly’s October 30 ruling for much of his analysis, agreeing with her that heightened judicial scrutiny applies to the plaintiffs’ equal protection claim and that the usual judicial deference to military policy decisions by the Executive Branch was not appropriate here. The judge took particular note of an amicus brief filed by retired military officers and former national security officials, who had written that “this is not a case where deference is warranted, in light of the absence of any considered military policymaking process, and the sharp departure from decades of precedent on the approach of the US military to major personnel policy changes.”

Garbis continued, “President Trump’s tweets did not emerge from a policy review, nor did the Presidential Memorandum identify any policymaking process or evidence demonstrating that the revocation of transgender rights was necessary for any legitimate national interest. Based on the circumstances surrounding the President’s announcement and the departure from normal procedure, the Court agrees with the DC Court that there is sufficient support for Plaintiffs’ claims that ‘the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.’”

Garbis, in fact, concluded that heightened scrutiny was not even necessary to rule on the plaintiffs’ behalf.

“The lack of any justification for the abrupt policy change, combined with the discriminatory impact to a group of our military service members who have served our country capably and honorably, cannot possibly constitute a legitimate governmental interest,” he wrote, so it would fail the minimally demanding “rationality test” applied to all government policies.

Garbis also closely followed Kollar-Kotelly’s analysis of the grounds for jurisdiction in this case, rejecting the government’s argument that since Mattis had not yet made his implementation recommendations to the president, nobody had been harmed so nobody had standing to bring the case. Adopting a policy that violates equal protection is deemed a harm even before it is implemented, and the stigma attached to the government officially deeming all transgender people as unfit to serve the country is immediate.

The court found that Trump’s directive that Mattis study how to implement the president’s orders was not, in effect, a mandate to recommend exceptions or abandonment of the ban, undercutting the government’s argument that it is merely hypothetical or speculative that the ban would go into effect unless enjoined by the courts.

Garbis went further than Kollar-Kotelly to enjoin the sex reassignment directive because the ACLU’s plaintiff group included at least two individuals whose transition procedures have already been disrupted and will be further disrupted if the ban goes into effect. The DC court had accepted the government’s argument that appropriate adjustments meant the plaintiffs in that case would not be denied transition procedures, but Garbis found that the timing of the transition procedures for the plaintiffs before him would be disrupted if the ban goes into effect, so the harm was not merely hypothetical.

The court based the preliminary injunction on its finding that plaintiffs were likely to prevail in their equal protection argument, and did not address the due process argument in that context. However, in rejecting the government’s motion to dismiss the due process claim, Garbis, taking note that the Obama administration in mid-2016 announced its intention to open up service to transgender Americans, accepted the plaintiffs’ argument that “it is egregiously offensive to actively encourage transgender service members to reveal their status and serve openly, only to use the revelation to destroy those service members’ careers.”

In perhaps the opinion’s strongest statement, Garbis wrote: “An unexpected announcement by the President and Commander in Chief of the United States via Twitter that ‘the United States Government will not accept or allow Transgender individuals to serve in any capacity in the US Military’ can be considered shocking under the circumstances. According to news reports provided by Plaintiffs, the Secretary of Defense and other military officials were surprised by the announcement. The announcement also drew swift criticism from retired generals and admirals, senators, and more than 100 Members of Congress. A capricious, arbitrary, and unqualified tweet of new policy does not trump the methodical and systematic review by military stakeholders qualified to understand the ramifications of policy changes.”

The only setback suffered by the plaintiffs was dismissal of their claim that the president’s bar on sex reassignment procedures also violated the military’s statutory guarantee of medical care. Garbis found that this claim lacked sufficient factual allegations. The dismissal, however, was made without prejudice, allowing the plaintiffs to amend their claim. In any event, Garbis granted the preliminary injunction on constitutional grounds against implementation of Trump’s sex reassignment surgery ban, exactly the part of the president’s memorandum targeted by the statutory claim he dismissed.

The Justice Department will likely seek to appeal this ruling to the Fourth Circuit Court of Appeals, just as it is appealing Kollar-Kotelly’s ruling to the DC Circuit Court of Appeals. By the time an appeal is considered, however, it is likely that preliminary injunctions will also have been issued by the district courts in Seattle and Los Angeles. Maybe a united front of judicial rejections of the transgender ban will convince Trump and Attorney General Jeff Sessions, whose department is defending the ban, that it is time to withdraw the August 25 memorandum and disavow the July 26 tweet.